The article stems from a conference organised by Jiri Priban from Cardiff University on Gunther Teubner's idea of societal constitutionalism applied to transnational regimes. My role was to test whether his descriptive and normative framework was readily applicable to the lex sportiva, and in particular its overarching "constitutional" text: the Olympic Charter.

As you will see my conclusion is mixed. I find that the Olympic Charter (OC) displays many constitutional features and is even able to regularly defend successfully its autonomy vis-à-vis national states and their laws. However, while I document some inception of limitative constitutional rules, such as the ban on discrimination or the principle of fair play, I also conclude that those have limited impact in practice. While constitutional changes to the OC can be triggered by scandal, resistance and contestation, as illustrated by the emergence of environmental concerns after the Albertville Games and the governance reshuffle of the IOC after the Salt Lake City scandal, I am also sceptical that these were sufficient to tackle the underlying problems, as became obvious with the unmatched environmental damage caused by the Sotchi Games in 2014.

In conclusion, more than sporadic public outrage, I believe that the intervention of national law and, even more, European Union law will be capable and needed to rein the Olympic regime and impose external constitutional constraints on its (at least sometimes) destructive operations.

Here is the abstract of the article: This article examines various aspects of Teubner's theory of societal constitutionalism using the lex sportiva as an empirical terrain. The case study focuses on the operation of the Olympic Charter as a transnational constitution of the Olympic movement. It shows that recourse to a constitutional vocabulary is not out of place in qualifying the function and authority of the Charter inside and outside the Olympic movement. Yet, the findings of the case study also nuance some of Teubner's descriptive claims and question his normative strategy.

Editor’s note:
Tomáš Grell holds an LL.M.
in Public International Law from Leiden University. He contributes to
the work of the ASSER International Sports Law Centre as a research
intern.

It has been more
than seven years since the FIFA Executive Committee awarded the 2022
World Cup to Qatar. And yet only in November 2017 did the Qatari government
finally agree to dismantle the controversial kafala system, described by
many as modern-day slavery. Meanwhile, hundreds of World Cup-related migrant
workers have reportedly been exposed to a wide range of abusive practices such
as false promises about the pay, passport confiscation, or appalling working
and living conditions.[1]
On top of that, some workers have paid the highest price – their life. To a
certain extent, all this could have been avoided if human rights had been taken
into account when evaluating the Qatari bid to host the tournament. In such a
case, Qatar would not have won the bidding contest without providing a
convincing explanation of how it intends to ensure that the country's poor human rights record
will not affect individuals, including migrant workers, contributing to the
delivery of the World Cup. An explicit commitment to abolish the kafala system could have formed an
integral part of the bid.

Urged by Professor
John Ruggie and his authoritative recommendations,[2]
in October 2017 FIFA decided to include human rights within the criteria for
evaluating bids to host the 2026 World Cup, following similar steps taken
earlier this year by the International Olympic Committee (IOC)
and UEFA in the context
of the Olympic Winter Games 2026 and the Euro 2024 respectively. This two-part
blog critically examines the role human rights play in the new bidding
regulations adopted by the IOC, UEFA, and FIFA. The first part sheds light on
the IOC and UEFA. The second part then takes a closer look at FIFA and aims to
use a comparative analysis to determine whether the new bidding regulations are
robust enough to ensure that selected candidates abide by international human
rights standards.More...

Editor's note: This report compiles all relevant news, events and
materials on International and European Sports Law based on the daily coverage
provided on our twitter feed @Sportslaw_asser. You
are invited to complete this survey via the comments section below, feel free
to add links to important cases, documents and articles we might have
overlooked.

The Headlines

2024 and 2028 Olympic Games to be held in Paris and
Los Angeles respectively

On 13 September 2017,
the Session of the International Olympic Committee (IOC) held in Lima, Peru, elected Paris and Los Angeles as host cities of the 2024 and
2028 Olympic Games respectively. On this occasion, the IOC President Thomas
Bach said that ''this historic double
allocation is a 'win-win-win' situation for the city of Paris, the city of Los
Angeles and the IOC''. The idea of a tripartite agreement whereby two
editions of the Olympic Games would be awarded at the same time was presented
by a working group of the IOC Vice-Presidents established in March 2017. Both
Paris and Los Angeles have pledged to make the Olympic Games cost-efficient, in
particular through the use of a record-breaking number of existing and
temporary facilities. In addition to economic aspects, it will be worthwhile to
keep an eye on how both cities will address human rights and other similar concerns
that may arise in the run-up to the Olympic Games. More...

This is a follow-up
contribution to my previous blog on human rights
implications of the Olympic Games published last week. Together with
highlighting some of the most serious Olympic Games-related human rights
abuses, the first part has outlined the key elements of the Host City Contract
('HCC') as one of the main legal instruments regulating the execution of the
Olympic Games. It has also indicated that, in February 2017, the International
Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights
obligations. Without questioning the potential significance of inserting human
rights obligations to the 2024 HCC, this second part will refer to a number of
outstanding issues requiring clarification in order to ensure that these
newly-added human rights obligations are translated from paper to actual practice. More...

Editor’s note:
Tomáš Grell is currently an LL.M. student
in Public International Law at Leiden University. He contributes to
the work of the ASSER International Sports Law Centre as a part-time
intern.

In its press release of 28 February 2017,
the International Olympic Committee ('IOC') communicated that, as part of the
implementation of Olympic Agenda 2020 ('Agenda 2020'), it is
making specific changes to the 2024
Host City Contract with regard to human
rights, anti-corruption and sustainable development. On this occasion, IOC
President Thomas Bach stated that ''this
latest step is another reflection of the IOC's commitment to embedding the
fundamental values of Olympism in all aspects of the Olympic Games''.
Although the Host City of the 2024 Summer Olympic Games is scheduled to be
announced only in September this year, it is now clear that, be it either Los
Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human
rights obligations.

This two-part blog will
take a closer look at the execution of the Olympic Games from a human rights
perspective. The first part will address the most serious human rights abuses
that reportedly took place in connection with some of the previous editions of
the Olympic Games. It will also outline the key characteristics of the Host
City Contract ('HCC') as one of the main legal instruments relating to the
execution of the Olympic Games. The second part will shed light on the human
rights provisions that have been recently added to the 2024 HCC and it will seek
to examine how, if at all, these newly-added human rights obligations could be
reflected in practice. For the sake of clarity, it should be noted that the
present blog will not focus on the provisions concerning anti-corruption that
have been introduced to the 2024 HCC together with the abovementioned human
rights provisions. More...

Editor's note: This blog is part of a special blog series on the Russian doping scandal at the CAS. Last year I analysed the numerous decisions rendered by the CAS ad hoc Division in Rio and earlier this year I reviewed the CAS award in the IAAF case.

Unlike
the International Association of Athletics Federations (IAAF), the
International Paralympic Committee (IPC) was very much unaffected by the
Russian doping scandal until the publication of the first McLaren report in July
2016. The
report highlighted that Russia’s doping scheme was way more comprehensive than
what was previously thought. It extended beyond athletics to other disciplines,
including Paralympic sports. Furthermore, unlike the International Olympic
Committee (IOC) the IPC had a bit more time to deal with the matter, as the Rio
Paralympic Games were due to start “only” in September.

After
the release of the McLaren Report, the IPC president Sir Philip Craven was “truly shocked, appalled
and deeply saddened at the extent of the state sponsored doping programme
implemented in Russia”. He immediately announced the IPC’s intention to review
the report’s findings and to act strongly upon them. Shortly thereafter, on 22
July, the IPC decided to open suspension proceedings
against the National Paralympic Committee of Russia (NPC Russia) in light of
its apparent inability to fulfil its IPC membership responsibilities and
obligations. In particular, due to “the prevailing doping culture endemic
within Russian sport, at the very highest levels, NPC Russia appears unable or
unwilling to ensure compliance with and the enforcement of the IPC’s
Anti-Doping Code within its own national jurisdiction”. A few weeks later, on 7
August, the IPC Governing Board decided to suspend the Russian
Paralympic Committee with immediate effect “due to its inability to fulfil its
IPC membership responsibilities and obligations, in particular its obligation
to comply with the IPC Anti-Doping Code and the World Anti-Doping Code (to which
it is also a signatory)”. Indeed, these “obligations are a fundamental
constitutional requirement for all National Paralympic Committees (NPCs), and
are vital to the IPC’s ability to ensure fair competition and to provide a
level playing field for all Para athletes around the world”. Consequently, the
Russian Paralympic Committee lost all rights and privileges of IPC membership. Specifically,
it was not entitled to enter athletes in competitions sanctioned by the IPC,
and/or to participate in IPC activities. Thus, “the Russian Paralympic
Committee will not be able to enter its athletes in the Rio 2016 Paralympic
Games”. More...

“One day Alice came to a fork in the road and saw a Cheshire cat in a
tree. ‘Which road do I take?’ she asked. ‘Where do you want to go?’ was his
response. ‘I don’t know,’ Alice answered. ‘Then,’ said the cat, ‘it doesn’t
matter.”

Tomorrow the Foundation Board
of the World Anti-Doping Agency (WADA) will gather in Glasgow for
its most important meeting since the creation of the Agency. Since the
broadcasting of a documentary alleging systematic doping in
Russian athletics by the German public broadcaster in December 2014, the
anti-doping world has been in disarray. The various independent investigations
(the Pound Report and the McLaren Report) ordered by WADA into doping allegations
against Russian athletes have confirmed the findings of the documentary and the
truth of the accusations brought forward by Russian whistle-blowers.
Undeniably, there is something very rotten in the world anti-doping system. The
current system failed to register a widespread, and apparently relatively open,
state-sponsored scheme aimed at manipulating any doping test conducted in
Russian territory. Moreover, it was not WADA that uncovered it, but an
independent journalist supported by courageous whistle-blowers. More...

Darya Klishina is now an Olympic
celebrity. She will enter the history books not because she won a gold medal or
beat a world record. Instead, her idiosyncrasy lies in her nationality: she was
the sole Russian athlete authorized to stand in the athletics competitions at
the Rio Olympics. And yet, a few days before the start of the long jumping contest
in which she was due to take part, the IAAF surprisingly decided to revoke her eligibility (‘And Then There Were None’). But Klishina
appealed the decision to the CAS ad hoc Division and, as all of you
well-informed sports lawyers will know, she was allowed to compete at the
Olympics and finished at a decent ninth place of the long jump finals.

Two important questions are raised
by this case:

Why did the IAAF
changed its mind and decide to retract Klishina’s authorization to participate?

Paragraph 2 of the IOC Decision: “The IFs will also have to apply their
respective rules in relation to the sanctioning of entire NFs.”

In paragraph 2 of its Decision,
the IOC mentioned the possibility for IFs to “apply their respective rules in relation to the sanctioning of entire
NF's”.This is exactly what the International Weightlifting Federation (IWF) did
when it decided on 29 July 2016 to exclude the whole Russian Weightlifting
Federation (RWF) from the Rio Olympics for having brought the sport into
disrepute. Indeed, Article 12. 4 of the IWF Anti-doping Policy, foresees that:

“If any Member
federation or members or officials thereof, by reason of conduct connected with
or associated with doping or anti-doping rule violations, brings the sport of
weightlifting into disrepute, the IWF Executive Board may, in its discretion,
take such action as it deems fit to protect the reputation and integrity of the
sport.”More...

Paragraph 2 of the IOC Decision: “The IFs should carry out an individual
analysis of each athlete’s anti-doping record, taking into account only
reliable adequate international tests, and the specificities of the athlete’s
sport and its rules, in order to ensure a level playing field.”

Daniil Andienko and 16 other members
of the Russian rowing team challenged the decision of the World Rowing
Federation (FISA) to declare them ineligible for the Rio Olympics. The FISA
Executive Committee took the decision on 24 July 2016 because they had not “undergone a minimum of three anti-doping tests analysed by a WADA accredited laboratory other than the Moscow
laboratory and registered in ADAMS
from 1 January 2015 for an 18 month period”.[1] In
their submissions, the Russian applicants did not challenge the IOC Decision,
and thus the criteria enshrined in paragraph 2, but only its application by
FISA.[2] The
Russian athletes argued that FISA’s decision deviated from the IOC Decision in
that it was imposing as an additional requirement that rowers must “have
undergone a minimum of three anti-doping tests analysed by a WADA accredited
laboratory other than the Moscow laboratory and registered in ADAMS from 1
January 2015 for an 18-month period”.[3] The Panel
acknowledged that “the IOC Executive Board decision does not refer explicitly
to the requirement of three tests or to a period of 18 months”.[4]
Nonetheless, it “finds that the Challenged Decision is in line with the
criteria established by the IOC Executive Board decision”.[5]
Indeed, the IOC’s Decision “provides that in order to examine whether the level
playing field is affected or not (when admitting a Russian athlete to the Rio
Olympic Games), the federation must look at the athlete's respective
anti-doping record, i.e. examine the athlete's anti-doping tests” and that
“[i]n doing so, the IOC Executive Board decision specifies that only "reliable
adequate international tests" may be taken into account”.[6] In
this regard, the Panel, and FISA, share the view that “a reliable adequate
international test can only be assumed if the sample has been analyzed in a
WADA-accredited laboratory outside Russia”.[7]More...

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The ASSER International Sports Law Blog

This blog is a knowledge hub for all things related with International Sports Law. On this page, you will find the recent developments in the field: publications, events and cases. Moreover, we will provide outstanding (short) academic commentaries on the most pressing questions in International Sports Law.